Delhi High Court - Orders
Sultan vs The State on 1 October, 2021
Author: Subramonium Prasad
Bench: Subramonium Prasad
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ BAIL APPLN. 1586/2019
SULTAN ..... Petitioner
Through Mr. Kali Charan, Advocate
versus
THE STATE ..... Respondent
Through Mr. Amit Chadha, APP for the State
with SI Bintu Sharma, Police Station
Nand Nagri
CORAM:
HON'BLE MR. JUSTICE SUBRAMONIUM PRASAD
ORDER
% 01.10.2021
1. This is an application under Section 438 CrPC for grant of bail in the event of arrest in FIR No. 210/2019 dated 23.04.2019 registered at Police Station Nand Nagri for offences under Section 452, 324, 308, 323, 427 and 34 IPC.
2. The FIR was registered on the complaint of one Babu Khan, R/o V- 635, Gali No.26, Vijay Park Maujpur, Delhi. It is stated that on 22.04.2019, the complainant has gone to his sister-in-law's house and his sister-in-law's husband was not there and he was waiting for him, his nephews Asim and Sonu were with him. He states that at about 10:30 p.m., three people forcibly entered the house and out of the three, one had a knife like instrument, one had an iron rod and one had a iron chain and a bottle and they were calling themselves as Sarfaraj, Sultan and Saif Ali. It is stated that Sarfaraj hit Asim on his chest and stabbed him with the sharp edged weapon BAIL APPLN. 1586/2019 Page 1 of 6 which looked like a knife. It is stated that the petitioner herein hit Asim and Sonu with the iron rod and also inflicted other injuries on his body. The third person Saif Ali hit Asim and Sonu with the chain and bottle in his hand. It is stated that Asim suffered injuries on his head and his body. It is stated that the petitioner herein also hit the complainant with an iron rod. Saif Ali also hit him on his head with the bottle.
3. It is stated that the petitioner become unconscious after he was hit. When he regained consciousness, he saw Asim lying unconscious and Sonu had also suffered injuries on his head. It is stated that the complainant was also in pain. It is stated that when the husband of his sister-in-law came back to his house, they informed the Police of the incident.
4. It is stated that the three person have also inflicted damage on the car of his brother-in-law. It is stated that they have also taken away the bag which was lying in the car. It is stated that the injured went to the GTB Hospital. It is stated that the petitioner and the co-accused were identified because they stay in the same colony. On the said complainant, the FIR was registered.
5. Co-accused/Sarfaraj was arrested and has been granted regular bail by the learned Additional Session Judge by an order dated 02.05.2019.
6. The petitioner filed an application under Section 438 CrPC which was rejected by order dated 09.05.2019 and the petitioner approached this Court by filing the instant application.
7. Notice was issued on 01.07.2019. Status Report has been filed. On 05.08.2019, it was submitted by the learned counsel for the petitioner that the Investigating Officer has seized the CCTV footage and the petitioner was not present at that site. However, the statement was denied by the BAIL APPLN. 1586/2019 Page 2 of 6 learned APP and he submitted that he will file a fresh Status Report regarding the CCTV footage. On 23.09.2019, the learned APP showed the photographs which were developed from the CCTV footage and stated that the statement of the petitioner that the petitioner was not present at the time of the incident stands contradicted from the photographs which were supplied to the counsel for the petitioner.
8. On 17.02.2020, the petitioner was granted interim protection and the State was directed not to take any coercive steps against the petitioner. The petitioner did not investigation.
9. On 09.08.2021, it was stated by the learned APP that the petitioner had been declared as a proclaimed offender. Since the no one appeared on behalf of the petitioner on 09.08.2021, court notice was issued to the counsel for the petitioner and the case was adjourned to 03.09.2021. On 03.09.2021, the State was directed to file a fresh Status Report. Status Report stands filed. It is mentioned in the Status Report that a notice dated 12.09.2021 was served on the petitioner's brother Shahrukh to join investigation on 14.09.2021 but the petitioner did not join investigation.
10. Heard Mr. Kali Charan, learned counsel for the petitioner and Mr.Amit Chadha, learned APP for the State and perused the material on record.
11. Mr. Kali Charan, learned counsel for the petitioner would contend that the FIR as filed and at this length of time, investigation should have been completed and there is no necessity for custodial interrogation of the petitioner. He further states that the CCTV footage has not been produced.
12. Per contra, Mr. Amit Chadha, learned APP would submit that Saif Ali, who was juvenile was arrested and handed over to his parents on BAIL APPLN. 1586/2019 Page 3 of 6 undertaking. The other co-accused/Shehzad was arrested on 04.11.2020 and was released on bail by an order dated 12.02.2021. It is stated that even though this Court had only granted the petitioner protection from any coercive steps but there was no stay of further investigation. The petitioner has not joined the investigation. Resultantly, the State initiated proceedings under Section 82 CrPC on 26.09.2019 and on 09.10.2019, the petitioner had been declared as a proclaimed offender. It is stated that the petitioner is evading arrest. It is stated that the petitioner was to join the investigation on 14.09.2021 and notice was served on the brother of the petitioner. Despite service, the petitioner has chosen not to join the investigation.
13. The order sheets show that the respondents were directed not to take any coercive steps against the petitioner on 17.02.2020. There is no direction that the petitioner need not join investigation. The order granting protection to the petitioner was passed on 17.02.2020 on which date, the petitioner had already been declared as proclaimed offender. The Status Report indicates that the petitioner has not joined the investigation, even on 14.09.2021.
14. The Supreme Court has categorically stated that when a person absconds and is declared as a proclaimed offender, then courts must not grant anticipatory bail. In Lavesh v. State (NCT of Delhi), (2012) 8 SCC 730, the Supreme Court has observed as under:-
"12. From these materials and information, it is clear that the present appellant was not available for interrogation and investigation and was declared as "absconder". Normally, when the accused is "absconding" and declared as a "proclaimed offender", there is no question of granting anticipatory bail. We reiterate that when a person against whom a warrant had been issued and is absconding or concealing himself in order to BAIL APPLN. 1586/2019 Page 4 of 6 avoid execution of warrant and declared as a proclaimed offender in terms of Section 82 of the Code he is not entitled to the relief of anticipatory bail." (emphasis supplied)
15. The said paragraph has been quoted and relied on by the Supreme Court in State of Madhya Pradesh v. Pradeep Sharma, (2014) 2 SCC 171. The relevant portion of the said judgment reads as under:-
"16. Recently, in Lavesh v. State (NCT of Delhi) [(2012) 8 SCC 730 : (2012) 3 SCC (Cri) 1040] , this Court (of which both of us were parties) considered the scope of granting relief under Section 438 vis-à-vis a person who was declared as an absconder or proclaimed offender in terms of Section 82 of the Code. In para 12, this Court held as under : (SCC p. 733) "12. From these materials and information, it is clear that the present appellant was not available for interrogation and investigation and was declared as „absconder‟. Normally, when the accused is „absconding‟ and declared as a „proclaimed offender‟, there is no question of granting anticipatory bail. We reiterate that when a person against whom a warrant had been issued and is absconding or concealing himself in order to avoid execution of warrant and declared as a proclaimed offender in terms of Section 82 of the Code he is not entitled to the relief of anticipatory bail." It is clear from the above decision that if anyone is declared as an absconder/proclaimed offender in terms of Section 82 of the Code, he is not entitled to the relief of anticipatory bail."
(emphasis supplied)
16. The petitioner has not joined the investigation and he has been declared as a proclaimed offender. He is absconding. He has chosen not to join the investigation even on 14.09.2021 even though notice was served on his brother. Courts cannot come to the aid of an accused who is evading investigation. The protection granted to the petitioner on 17.02.2020 cannot BAIL APPLN. 1586/2019 Page 5 of 6 be extended further.
17. In terms of the judgments passed by the Supreme Court and in view of the fact that the petitioner has been declared as a proclaimed offender, the protection granted to the petitioner stands cancelled forthwith.
18. The application is dismissed with the above observations.
SUBRAMONIUM PRASAD, J OCTOBER 1, 2021 hsk BAIL APPLN. 1586/2019 Page 6 of 6